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2021 Supreme(Guj) 741
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. Karia, J.
Essar Bulk Terminal Limited – Petitioner
Versus
Arcelormittal Nippon Steel India Limited & others – Respondents
R/Special Civil Application No. 10577 of 2021
Decided On : 18-10-2021
Advocate Appeared:
For the Petitioner:Mr. Deven Parikh, Senior Advocate With Mr. Mit S. Thakkar
For the Respondent:Mr. Mihir Thakore, Senior Advocate and Mr. Navin Pahwa, Senior Advocate With Mr. Aditya J. Pandya, Advocate For Mr. Nirag N Pathak
Point of Law: Once it is brought to the notice of the court on its jurisdiction has been taken away in terms of the procedure prescribed under special statute, the civil court should first to see whether there is ouster of jurisdiction in terms or compliance of the procedure under the special statute.
Headnote:
Constitution of India,1950 – Article 15 and 227 – Civil Procedure Code,1908 – Section 115 and 34(3) - Arbitration and Conciliation Act 1996 - Section 8 – Agreement - Petitioner is providing cargo handling services to Respondent at the port terminal managed and operated by Petitioner - An agreement was executed between the petitioner and Respondent No. 1 along with all amendments thereto from time to time, which governs the terms and conditions of such agreement - Pursuant to the CHA 2011, both parties have also entered into a Service Level Agreement which was subsequently revised by way of Service Level Agreement and respondent vested the management of AMNS Jetties with petitioner - Petitioner applied for and procured in its name necessary certification under ISPS Code from the Directorate General of Shipping, India in compliance with guidelines of International Maritime Organization in respect of the AMNS Jetties - That, the petitioner is obliged under ISPS Code to inter-alia ensure that access to port facility is controlled as per Port Facility Security Plan, which was approved, stamped and verified by Director General of Shipping, Government of India, which is a security sensitive and confidential document on account of its bearing on port and national security - Whether such access be allowed in ISPS Area in interest of port and national security.
Finding of the Court:
As per opinion of this Court, learned Additional District Judge has committed an error in exceeding its jurisdiction arrived at final determination of rights of the parties in the appeal against impugned order - Observations made by learned Additional District Judge are against the present petitioner in Misc. Civil Appeal would certainly raise hurdle before Arbitral Tribunal, despite that, learned Additional District Judge accepted that jurisdiction of the Civil Court is ousted to decide dispute has committed jurisdictional error as court set in appeal over and order passed under Order 39 of Code by making observations in the impugned order which were not wanted on merits of dispute which is a subject matter of suit and these observations are required to be quashed and set aside under the powers vested under Article 227 of Constitution of India with this Court.
Result: Petition disposed of.
JUDGMENT :
1. By preferring this petition, petitioner has challenged the order dated 15th July 2021 passed by the learned 13th Additional District Judge, Surat in Misc. Civil Appeal No. 19 of 2021 reversing the order dated 30th March 2021 passed in the interim application filed under Order 39 Rule 1 and 2 of the Civil Procedure Code in Regular Civil Suit No. 96 of 2021 by the learned 8th Additional Civil Judge, Surat wherein learned Civil Judge confirmed the ex-parte interim order dated 2nd March 20021 passed in pursuant to the interim application.
2. Short facts of the present case may be summarized as under :
2.1 As per the averments made by the petitioner, petitioner is providing cargo handling services to the Respondent No. 1 since May 2010 at the port terminal managed and operated by the Petitioner. An agreement was executed on 21st February 2021 between the petitioner and the Respondent No. 1 along with all the amendments thereto from time to time, which governs the terms and conditions of such agreement. Pursuant to the CHA 2011, both the parties have also entered into a Service Level Agreement dated 28th August 2012 which was subsequently revised by way of the Service Level Agreement dated 01st April 2016 and respondent no.1 vested the management of the AMNS Jetties with the petitioner. Thereafter, Petitioner applied for and procured in its name necessary certification under the ISPS Code from the Directorate General of Shipping, India in compliance with the guidelines of International Maritime Organization in respect of the AMNS Jetties. That, the petitioner is obliged under the ISPS Code to inter-alia ensure that access to the port facility is controlled as per the Port Facility Security Plan, which was approved, stamped and verified by the Director General of Shipping, Government of India, which is a security sensitive and confidential document on account of its bearing on port and national security. It was the responsibility of the petitioner to ensure that the necessary documents are verified for authorised persons and vehicles, and a satisfaction is arrived at by the Security Team of the Petitioner whether such access be allowed in the ISPS Area in the interest of port and national security. That, the respondent no.1 illegally and without authorization from the petitioner instructed the respondent no.2 and respondent no.3 as well as other unknown persons to gain unauthorized and forced access into the areas of the AM/ NS Jetties which are subject to the security protocols prescribed under the ISPS Code and have a restricted access. Respondent No.1 breached the PFSP of the ISPS Area from 16th February 2021 onwards, however, Petitioner issued a correspondence dated 18th February 2021 requiring the Respondent No. 1 to abstain from breaching the security protocol in the interest of the port and national security.
2.2 Being dissatisfied with the conduct of the respondents, petitioner filed a Civil Suit before the learned Judge of the Commercial and Civil Court, Surat seeking inter alia a permanent injunction retraining the Respondents from accessing the ISPS Area without prior approval/authorization of the petitioner. That, the petitioner also filed an interim application seeking grant of ex-parte interim relief under Order 39 Rule 1 and 2 of the Code of Civil Procedure (herein after referred to as “the Code”). Learned Civil Judge, vide order dated 2nd March 2021 passed ex-parte interim relief in favour of the petitioner restraining the respondents from accessing the IPSP Area of AM/NS Jetties without prior approval of the Petitioner. The respondent no1 subsequently filed an application on 4th March 2021 under Order 39 Rule 4 read with Section 151 of the Code for vacation of the ex-parte interim relief granted in favour of the petitioner. Learned Civil Judge, after hearing the parties, was pleased to dismiss the application filed by the respondent no.1 vide order dated 15th March 2021. In the said suit, respondents filed
